1989 PLP 1103 (SCMR)

Aftab Farrukh, Senior Advocate Supreme Court instructed by Sh. Masud Akhtar, Advocate‑on‑Record for Petitioner. Nemo for Respondents Nos.l to

4. M. Akhtar, Additional Advocate‑General Punjab with Kh. Shaukat Ali, Advocate Supreme Court instructed by Rao Muhammad Yousuf Khan, Advocate‑on‑Record for Respondent No.5. JAVID IQBAL, J.‑‑This petition for leave to appeal has been filed against the judgment of the Lahore High Court, Lahore dated 29 October, 1985 whereby Ghulam Shabbir respondent was acquitted and the conviction of Maqbul Hussain respondent was altered to one under section 304, Part 1, P.P.C. and his sentence was reduced to ten years' R.I. plus fine. The revision petition filed by the present petitioner‑complainant was dismissed. Before us learned counsel presses this petition against Ghulam Shabbir respondent for conviction under section 302, P.P.C. and sentence thereunder and against Maqbul Hussain respondent for death sentence by converting his conviction from under section 304, Part 1, P.P.C. to section 302, P.P.C. Briefly the facts are that Ghulam Shabbir and Maqbul Hussain respondents alongwith Muhammad Rafiq and Muhammad Ayub were tried for offences under section 302/307/34, P.P.C. and the trial Court vide its judgment convicted Ghulam Shabbir and Maqbul Hussain respondents under section 302/34, P.P.C. and sentenced each of them to imprisonment for life plus fine. So far as Muhammad Rafique and Muhammad Ayub were concerned they were only convicted under section 323, P.P.C. and sentenced to one year's R.I. each. The High Court as stated above acquitted Ghulam Shabbir respondent and altered the conviction and sentence of Maqbul Hussain respondent. The deceased in the instant case is Ishtiaq Hussain Shah and the two injured witnesses are Muhammad Hussain and Arshad Mahboob. The occurrence took place at 11 a.m. on 9 October, 1981 in a bazar of Shahpur City, District Sargodha. F.I.R. was lodged by the father of the deceased on the same day after some hours. From Ghulam Shabbir and Maqbul Hussain respondents were recovered blood‑stained knives whereas from Muhammad Rafique and Muhammad Ayub only hockey s were recovered (not blood‑stained). The three eye‑witnesses produced in the instant case are all closely related to the deceased: namely Muzaffar Ali Shah father of the deceased, Muhammad Husnain collateral of father of the deceased and Arshad Mahboob maternal‑cousin of the petitioner as well as son of his Sala. The motive is that Maqbul Hussain respondent suspected that the deceased was carrying on illicit relationship with his sister Mst. Mariam. It was in this background that the deceased was attacked and killed. According to the medical evidence the deceased had three incised wounds and three contusions. Out of these six injuries two proved fatal and the rest were simple. From the accused side Maqbul Hussain respondent had also received two incised wounds, simple in nature. Muhammad Hussain and Arshad Mahboob had seven and two injuries respectively with blunt weapon but simple in nature. According to the prosecution version the deceased was going to deliver Qurbani meat on Eid Day. While he passed through the bazar the accused party encircled him and attacked him. Maqbul Hussain respondent gave him a knife blow on the left side of chest. Ghulam Shabbir respondent gave him a knife blow on the left side of neck. Maqbul Hussain respondent then inflicted another knife blow which hit him on the back of left hand. The deceased fell down. The eye‑witnesses were attracted to the scene of crime due to his alarm. When they tried to intervene Muhammad Rafique and Muhammad Ayub gave injuries to Muhammad Hussain and Arshad Mahbood with their hockey sticks. Thereafter they ran away. The findings of the High Court are that the deceased was already with a knife and that therefore Ghulam Shabbir respondent would not have risked going near him, and that in all probability the occurrence in the instant case took place over some sudden instance in which both sides were armed and they injured each other. The motive version as put forth by the prosecution has not been relied upon by the High Court. According to the High Court it was a case of sudden fight. Further the High Court did not consider the eye‑witnesses reliable in respect of their version of the occurrence because in their anxiety to explain away the injuries on the person of Maqbul Hussain respondent they went to the extent of creating contradiction with the medical evidence. Learned counsel for the petitioner attempted to argue before us that the motive should have been believed and that the accused party had waylaid the deceased and the murder was pre‑planned. But we do not find any substance in this argument as it is not supported by the record. After perusal of the impugned judgment we are of the considered view that the conclusion arrived at by the High Court in the circumstances of the case was correct and proper, and no interference is called for. As a result this petition is dismissed . M.BA./1‑71/S Petition dismissed.